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82 INTELLECTUAL PROPERTY & THE CONSTITUTION
First, “restored copyright” holders can now charge fees for works that consumers
previously used for free. The price of a score of Shostakovich’s Preludes and Fugues Op.
87, for example, has risen by a multiple of seven. . . . If a school orchestra or other nonprofit
organization cannot afford the new charges, so be it. They will have to do without—
aggravating the already serious problem of cultural education in the United States []
(describing the inability of many orchestras to pay for the rental of sheet music covered by
“restored copyright[s]”).
Second, and at least as important, the statute creates administrative costs, such as
the costs of determining whether a work is the subject of a “restored copyright,” searching
for a “restored copyright” holder, and negotiating a fee. Congress has tried to ease the
administrative burden of contacting copyright holders and negotiating prices for those
whom the statute calls “reliance part[ies],” namely those who previously had used such
works when they were freely available in the public domain. But Congress has done
nothing to ease the administrative burden of securing permission from copyright owners
that is placed upon those who want to use a work that they did not previously use, and this
is a particular problem when it comes to “orphan works”—older and more obscure works
with minimal commercial value that have copyright owners who are difficult or
impossible to track down. . . .
There are millions of such works. For example, according to European Union figures,
there are 13 million orphan books in the European Union (13% of the total number of books
in-copyright there), 225,000 orphan films in European film archives, and 17 million orphan
photographs in United Kingdom museums. How is a university, a film collector, a musician,
a database compiler, or a scholar now to obtain permission to use any such lesser known
foreign work previously in the American public domain? Consider the questions that any
such individual, group, or institution usually must answer: Is the work eligible for
restoration under the statute? If so, who now holds the copyright—the author? an heir? a
publisher? an association? a long-lost cousin? Whom must we contact? What is the address?
Suppose no one answers? How do we conduct a negotiation?
To find answers to these, and similar questions, costs money. The cost to the
University of Michigan and the Institute of Museum and Library Services, for example,
to determine the copyright status of books contained in the HathiTrust Digital Library
that were published in the United States from 1923 to 1963 will exceed $1 million.
It is consequently not surprising to learn that the Los Angeles Public Library has
been unable to make its collection of Mexican folk music publicly available because of
problems locating copyright owners, that a Jewish cultural organization has abandoned
similar efforts to make available Jewish cultural music and other materials, or that film
preservers, museums, universities, scholars, database compilers, and others report that the
administrative costs associated with trying to locate foreign copyright owners have forced
them to curtail their cultural, scholarly, or other work-preserving efforts. . . .
B
. . . Worst of all, “restored copyright” protection removes material from the public
domain. In doing so, it reverses the payment expectations of those who used, or intended
to use, works that they thought belonged to them. Were Congress to act similarly with
respect to well-established property rights, the problem would be obvious. This statute
analogously restricts, and thereby diminishes, Americans’ preexisting freedom to use
formerly public domain material in their expressive activities.
Thus, while the majority correctly observes that the dissemination-restricting harms
of copyright normally present problems appropriate for legislation to resolve, the question